Associate Professor Kun Fan’s teaching and research focuses on the areas of Alternative Dispute Resolution (ADR), Online Dispute Resolution (ODR), comparative legal studies, and law and society. She has studied and worked in China, Singapore, USA, Switzerland, France, Hong Kong and Canada, and speaks Chinese, English and French. She has been a member of CIBEL since its establishment in 2015.
From upcoming projects and collaborations to her most momentous achievements, Associate Professor Kun Fan shares her experience as a researcher down below.
Can you give us a quick overview of your research?
I work in the area of Alternative Dispute Resolution (ADR), Online Dispute Resolution (ODR), comparative legal studies, and law and society.With my training in both the East and the West, in both common law and civil law jurisdictions, I am particularly interested in broad intellectual inquiries across national, discplinary and professional boundaries. My research covers the intersection of mediation, international arbitration, international investment law, environmental law and sustainable development.
What or who sparked your interest in pursuing this field of research?
Before joining the academia, I worked as a deputy counsel at the ICC International Court of Arbitration and have also worked as counsel, mediator, arbitrator, expert witness and domain name panelist. Through these practical experiences, I find that despite its prominent role in the delivery of justice, international arbitration has not received the same intensity of theoretical and interdisciplinary research as courts have received.
There is generally a lack of dialogue between arbitration specialists and scholars in other areas of substantive interest.
So, I am interested in exploring some theoretical questions raised by international arbitration, breaking through conventional sub-disciplinary boundaries — such as legal history, comparative law, sociology of law, legal anthropologists, law and economics and other areas of substantive interest.
How would you explain and introduce your research to someone with no legal background in the area?
Do you know that the state’s environmental and human rights interests are often ignored or marginalized in investment arbitrations?
Mobilizing investment and ensuring that it contributes to sustainable development goals (SDGs) is more important than ever at a time of pressing social and environmental challenges.
One of my research projects will identify both the barriers to and opportunities for mainstreaming the SDGs into investment treaties and investor-state arbitration. The analysis and recommendations of the project will help secure the social, environmental and economic benefits of the SDGs. It will also better inform businesses to balance their commercial objectives and sustainable development goals.
What project are you working on that excites you?
In line with the recent move from investor protection to investor responsibilization, I am currently working on a project on investment arbitration and sustainable development, funded by Bird & Bird, which examines the status in existing investment treaties incorporating sustainable development clauses, and explores new opportunities and approaches to embedding sustainable development goals in investment treaties and investor-state arbitration.
I am also excited to work on the Australia Research Council-funded project China's Belt and Road Initiative: An Alternative Model of Transnational Economic Governance? - collaborating with Dr. Jonathan Bonnitcha, Prof. Heng Wang, and Prof. Ross Buckley. This socio-legal project examines how the Belt and Road Initiative (BRI) affects the way cross-border economic interactions are governed and explores the implications of these changes for the world economy. I am particularly interested in the role of informalism in China's dispute resolution and China's development of new legal infrastructure for dispute settlement in the BRI.
What do you hope to achieve with your research/impact & engagement in the next year?
I look forward to conducting empirical research to test the hypothesis from preliminary analysis and uncover governance practices occurring within and alongside the new legal infrastructure for dispute resolution that China is developing, such as the establishment of China International Commercial Courts and the International Commercial Dispute Prevention and Settlement Organization (ICDPASO) led by China. In particular, I hope to get insights from officials involved in the formation/operation of these new institutions and participants in disputes within or outside such institutions. Through collaboration with Dr. Jonathan Bonnitcha, Prof. Heng Wang, and Prof. Ross Buckley, who work on other streams such as investment and central bank digital currency, we hope to identify the principles, rules, institutions, and practices that underpin the BRI and develop a theoretical account of why China engages in particular modes of governance.
What research/impact & engagement achievement are you most proud of and why?
Through a series of interviews with Chinese judges, my research on judicial mediation in China provides an empirical narrative of how judicial mediation is practiced in China and analyses the values and limitations of judicial mediation. This study contributes to the growing field of comparative judicial behaviour beyond Western democracies and expands our inquiry beyond the focus on the role of politics and law when analysing judicial behaviour in authoritarian states.
The role of informal justice in developed economic states such as contemporary China also challenges traditional "rule of law" thinking, which assumes an inevitable progression from informal to formal legality.
The article is accessible here.
In my capacity as an Executive Member of the Mixed Mode Taskforce, after consulting with members of the working groups and a series of public consultations, we have published our final reports with practical suggestions for users and providers of dispute resolution services about the way dispute resolution processes can be combined to optimize the resolution of commercial disputes between businesses, and what constraints should be considered.
The outputs of the Task Force have been presented at numerous conferences, published on the International Mediation Institute's website, and cited in academic articles. The outcomes suggested innovative ways to improve access to justice by providing faster, cheaper, and better ways of resolving disputes. The poll from the public consultation sessions shows that more than 85% of the participants find the tools we developed useful.
The full reports can be found here.
Do you have a regular research practice that you can share?
I try to stay connected with the industry to keep up with the latest developments, and see where the gaps in the law and practice might emerge. In examining specific questions in the field of dispute resolution, I think it is also important to engage with a wider groups of scholars including legal historians, legal theorists, environmentalists, human rights scholars to expand the scope of our intellectual inquiry.
Is there a particular topic you would like to connect with other scholars and industry partners on?
I am interested in seeing how the broader research streams in the "law & X movements," such as "law and economics," "law and sociology," "law and anthropology," may be applied in the field of arbitration. I am interested in collaborating with colleagues in other disciplines for a cross-disciplinary dialogue.
What change do you hope your research will bring within your area of law and how do you anticipate it will influence and affect the relevant aspects and the broader community?
Raising greater awareness of the paradigm shift from investor protection to investor responsibilization informs policymakers and arbitrators on the need to rebalance the rights and obligations of investors and states when treaties are both renegotiated and disputed. In the meantime, Environmental, Social and Governance (ESG) issues continue to create a paradigm shift in the way businesses are run. In parts of Europe, mandatory ESG due diligence rules have been introduced to force a more active approach to ESG risk management.
Business needs to be aware of these developments so as to adapt their business strategy in the green economy.
You can connect with Kun and her work through LinkedIn, Twitter @Fankunlegal, her Professional Website, and SSRN.